Pennsylvania's Redistricting News
Science Monitor: "Court throws power to draw political districts
to elected officials." April 29, 2004
Christian Science Monitor
In upholding a Pennsylvania redistricting plan that gives a clear advantage to Republican candidates in a state with an evenly split party registration, a four-judge plurality of the nation's highest court said it is up to elected political leaders - not judges - to determine how congressional election districts should be drawn.
But the court came one vote shy of barring judicial oversight in such cases. While the plurality justices declined to enter a political fray over highly partisan efforts to draw congressional districts that favor one party over another on election day, Justice Anthony Kennedy refused to go that far.
The Constitution does not provide "a judicially enforceable limit on the political considerations that the states and Congress may take into account when districting," writes Justice Antonin Scalia, in the plurality decision joined by Chief Justice William Rehnquist, Justice Sandra Day O'Connor, and Justice Clarence Thomas.
The decision will do little to quell similar political brawls over congressional redistricting in Texas, Colorado, and Georgia. And it will likely spark more intense battles elsewhere, including efforts to redraw district lines every two years rather than the customary practice of every 10 years following the Census.
Political analysts say the ruling will only accelerate the trend toward noncompetitive races for congressional seats.
"It takes the ref off the field," says Norman Ornstein, a political scientist at the American Enterprise Institute. "What they've done with this opinion is to leave the floodgates open for a kind of process that ... has led to the destructive, acrimonious, partisan politics and frequent gridlock that we now have."
Jack Krill, the Harrisburg, Pa., lawyer who argued to uphold the Pennsylvania plan, said the decision should help reduce the litigation over redistricting after every Census. "Even though we didn't get a full majority..., the net result will be to put to rest claims of too much politics in what is essentially a political process," he says.
In reaching its decision, the four-justice plurality said it would overturn an 18-year high court precedent holding that, under certain circumstances, political gerrymandering could go too far by violating constitutional principles underlying the concept of one person, one vote. The plurality said the goal of achieving "fairness" had proved impossible for courts to enforce.
"Fairness is not a judicially manageable standard," Justice Scalia writes. "Some criterion more solid and more demonstrably met than that is necessary to enable state legislatures to discern the limits of their districting discretion, to meaningfully constrain the courts' discretion, and to win public acceptance for the courts' intrusion into a process that is the very foundation of democratic decisionmaking."
In a dissent, Justice John Paul Stevens calls the plurality's opinion "a failure of judicial will."
"The concept of equal justice under law requires the state to govern impartially," he writes. "Today's plurality opinion would exempt governing officials from that duty in the context of legislative redistricting and would give license, for the first time, to partisan gerrymanders that are devoid of any rational justification."
Justice Kennedy concurred in the judgment upholding the Pennsylvania plan, but refused to say that no role exists for judges in policing political gerrymanders. Justices David Souter, Stephen Breyer, and Stevens suggested possible standards that could be applied in gerrymandering cases. But no single set of standards was endorsed by a majority.
The decision stems from a challenge to redistricting plans in Pennsylvania in which Democrats complained that Republicans had locked up a majority of congressional districts by packing Democratic voters into a few heavily Democratic districts while spreading Republican districts more widely across the state.
The Democrats said the redistricting plan would guarantee Republican dominance of the congressional delegation for the next 10 years even if more Democrats than Republicans vote in congressional elections.
At issue in Vieth v. Jubelirer was whether such political gerrymandering violates constitutional principles.
The issue arises at a time when party officials are able to use sophisticated computer information to assemble election districts that favor their party and disadvantage political challengers.
The case was being closely watched because with the nation itself sharply divided between Democrats and Republicans, both parties are looking for any advantage over the other to gain or hold control of Congress.
Because of population shifts identified in the 2000 census, Pennsylvania was slated to lose two of its 21 congressional seats in the state's redistricting effort. In 2001, the state was represented in Congress by 11 Republicans and 10 Democrats.
But the 19 new districts were drawn in such a way as to give Republicans at least a 12-to-7 advantage over Democrats, even though there were more registered Democrats in Pennsylvania than Republicans.
Ultimately the courts upheld the redistricting plan, ruling that while the partisan gerrymandering used to redraw the district lines offered an advantage to Republicans, it did not "shut out" Democrats from the political process and thus could not be held a violation of constitutional principles.
A deeply divided Supreme Court yesterday upheld a redistricting plan that sought to give the Republican Party an edge in races for Pennsylvania's 19 congressional seats but refused to close the door on court challenges to such "partisan gerrymandering" in future cases.
A five-justice majority ruled that there is no objective way to determine whether the 2002 Pennsylvania redistricting plan, which a Republican-dominated state legislature devised and which produced GOP victories in 12 of the 19 districts, was so unduly influenced by politics that it denied Democrats their constitutional right of equal treatment under state law. As a result, the majority said, the court must bow out.
The Pennsylvania case had drawn the attention of politicians nationwide because it arose at a time of intense partisan debate over post-2000 Census redistricting plans in several states, including Texas -- where Democratic legislators temporarily fled the state in an ultimately failed attempt to block the Republican-controlled legislature from drawing new congressional districts that create a GOP-majority state delegation in the U.S. House. Appeals of Texas's new districts are pending.
No "judicially manageable standards for adjudicating political gerrymandering claims have emerged," Justice Antonin Scalia wrote in an opinion that was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas. Though a decision by the court in 1986 opened the door to court challenges against alleged partisan gerrymandering, Scalia wrote, the past 18 years of experience, in which no court has upheld such a challenge, shows that "political gerrymandering claims are nonjusticiable and that [the 1986 decision] was wrongly decided."
The fifth member of the majority, Justice Anthony M. Kennedy, agreed with Scalia that the Pennsylvania Democrats, who noted that the state now has a Republican-majority House delegation even though Democrats got most of the statewide vote for Congress, had failed to show how a court could decide that they had been the victims of unconstitutional gerrymandering.
But he said that did not mean a court could never figure out how much political gerrymandering is too much, and he refused to overrule the 1986 decision.
"I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases," he wrote.
Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer dissented, offering their views of how courts could formulate intelligible definitions of excessively partisan redistricting.
In his opinion, Stevens emphasized that, together with Kennedy, the dissenters formed a five-vote majority for the proposition that "political gerrymandering claims are justiciable," at least in theory.
He criticized Scalia for what he called "a failure of judicial will to condemn even the most blatant violations of a state legislature's fundamental duty to govern impartially."
Sixty-one Democratic Texas state representatives and five Democratic members of the U.S. House filed a friend-of-the-court brief noting that advances in computer technology have greatly enhanced the capabilities of would-be partisan redistricters, and urging the court to rein in what they called "an increasingly bare-knuckled and irregular process."
Other critics of the current redistricting process, such as the Brennan Center for Justice at New York University Law School and the American Civil Liberties Union, which also filed briefs in the case, charge that both parties are using computer-aided redistricting to entrench incumbent House members.
But yesterday's outcome, which left future lawsuits against political gerrymanders hanging on the theoretical possibility of winning Kennedy's vote, seemed to signal a shift of the debate from the courts to the political process.
"With the courts out of the picture, it is up to citizens and legislators to fix a redistricting process that in too many states has corroded democracy rather than serving it," Tom Gerety, executive director of the Brennan Center, said in a statement.
"The political gerrymandering claim is not legally dead, but it's on permanent life support," said Michael Carvin of the law firm Jones Day, who has represented Republicans in numerous redistricting cases. "There's no real-world theory [of redistricting that is unconstitutionally partisan] that this majority is going to accept. They are extraordinarily skeptical that any kind of political redistricting would violate the constitution."
But Sam Hirsch, who represented the Democratic plaintiffs in the Pennsylvania case, said that "the search for a standard goes on, but partisan gerrymanders remain subject to judicial attack. Today's decision is a warning shot to legislators who care more about partisan greed than democracy and majority rule."
Ruling in favor of Republicans, the Supreme Court on Wednesday upheld the boundaries of Congressional districts in Pennsylvania against Democratic charges of unconstitutional political gerrymandering.
But the court, in a 5-to-4 decision, left open the possibility that someday a case of gerrymandering might arise that was so egregious that it violated the Constitution.
Four justices ˇ Chief Justice William H. Rehnquist and Associate Justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas ˇ held that redistricting was a political matter that was always beyond the court's purview.
Speaking for the four, Justice Scalia wrote that the Constitution did not provide "a judicially enforceable limit on the political considerations that the states and Congress may take into account when districting."
Four other associate justices ˇ John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen Breyer ˇ said the court was obligated to step in when the maps of political districts were drawn for no other reason than to put one party at an advantage over the other.
Holding the swing vote, Associate Justice Anthony M. Kennedy voted with his conservative colleagues in saying that the Pennsylvania case did not violate the Constitution. But in a separate opinion, he declared that he was not willing to say as they did that no case would ever rise to that standard.
The lineup of the justices was the same as in the case that ended the
recount in Florida after the 2000 election and essentially awarded the
Several other redistricting cases are in the pipeline and may end up before the Supreme Court. If the court accepts a suit challenging State Senate and House districts in Georgia and decides it on the same ground as the Pennsylvania case, then Democrats would be the winners. But issues other than partisan gerrymandering are involved in the Georgia case, and it could be decided on different grounds.
The most conspicuous case is in Texas. A new map of Congressional districts was approved there last year at the urging of Representative Tom DeLay, the House majority leader. Republicans drew the new lines after they won full control of the Legislature, and they are expected to bring the party at least four new House seats in November.
In Pennsylvania, the Congressional lines had to be redrawn in 2002 after the state lost two House seats as a result of the 2000 census. With a Republican governor and Legislature, the new boundaries were set so that Democratic incumbents were placed in the same district in two instances, and another Democratic representative was placed in a heavily Republican district. Districts were given highly irregular shapes to give Republicans a further advantage.
At the time of the 2002 election, the state had 3.7 million registered Democrats and 3.2 million registered Republicans, but after the election, the state's Congressional delegation went from 11 Democrats and 10 Republicans to 12 Republicans and 7 Democrats.
Democrats cried foul, and three voters sued in federal court, claiming the redistricting deprived them of their right to equal protection. A three-judge federal court in Harrisburg dismissed the suit, saying Democrats had not demonstrated sufficient injury, and the case (Vieth v. Jubelirer, No. 02-1580) was appealed to the Supreme Court.
The issue of partisan gerrymandering is as old as the Republic. The word "gerrymander" was devised in 1811 to mock the governor of Massachusetts, Elbridge Gerry, who drew an election district that was said to resemble a salamander.
The Supreme Court steered clear of how political boundaries were set until 1960, when it declared racial gerrymandering to be unconstitutional. Then in a confusing 1986 ruling, Davis v. Bandemer, it held that political gerrymandering could conceivably be unconstitutional.
But the court never explained what the standard was for violating the Constitution, and since then, no challenge to partisan gerrymandering has ever been successful.
In his controlling opinion on Wednesday, Justice Scalia wrote that since "no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged" over the last 18 years, the court "must conclude that political gerrymandering claims are nonjusticiable."
Justices Stevens, Souter and Breyer wrote separate dissents, all of them holding that blatant partisan gerrymandering was incompatible with democratic principles.
Justice Stevens argued that when the "only possible explanation" for the way lines were drawn was "a naked desire to increase partisan strength, then no rational basis exists" for not applying the equal protection doctrine.
t is unfortunate," Justice Anthony Kennedy lamented yesterday, "that our legislators have reached the point of declaring that, when it comes to apportionment, `We are in the business of rigging elections.' " Despite that trenchant analysis of the state of our democracy, Justice Kennedy joined four of his colleagues in rejecting a challenge to Pennsylvania's thoroughly biased Congressional redistricting plan. Yesterday's 5-to-4 ruling was an enormous missed opportunity, one we can only hope the court revisits another day. Until it does, the public must challenge the growing trend of treating reapportionment as an opportunity to rig elections.
Partisan gerrymandering, drawing district lines to favor one political party, has reached a crisis point. Because of increased partisanship and improvements in the technology used to determine district lines, legislators now regularly create districts that all but ensure victory for the party that controls the redistricting process. In Pennsylvania, Republicans drew preposterously shaped districts ˇ one is known as the "supine sea horse" ˇ that distort the state's political preferences. Although a majority of the state's voters are registered Democrats, the district lines produced a Congressional delegation of 12 Republicans and 7 Democrats. Partisan gerrymandering does not merely distort voting; it makes it largely irrelevant. Only about one in 12 House elections in 2002 was decided by no more than 10 percentage points, and nearly 20 percent were essentially uncontested.
In yesterday's decision, the court rejected a constitutional challenge to the Pennsylvania district lines. Antonin Scalia, writing for four justices, made much of how hard it would be to come up with a workable standard to apply in gerrymandering cases. But that is an objection judges often make when they do not want to do something. In cases involving states' rights, which these same justices feel passionately about, they have been happy to apply tests that are almost incomprehensible. The dissents offer several possible approaches, any of which would do nicely.
The ruling is equivocal because of Justice Kennedy's ambivalent opinion. He joined the plurality in upholding the Pennsylvania districts. But he declined to join the other four in reversing a previous decision that said partisan gerrymandering could be legally challenged. His opinion, which suggests some possible approaches for future cases, leaves the door open, though it is unclear how open.
The best hope for democracy is for a future court, perhaps with different membership, to reconsider this issue. Until then, voters should start demanding district lines that produce real elections. Iowa, which has long had a nonpartisan redistricting commission, is a worthy model for other states. Politicians from both parties bemoan the increased partisanship in politics today. They can show that they mean it, and that they value the role of voters in this democracy, by putting nonpartisan redistricting in place before the 2010 census.
PHOENIXVILLE - Borough Council will hold a special meeting to review a new redistricting plan for council seats, but it may be a moot point, according to Chester County Voter Services.
Council agreed at its Tuesday meeting to meet Thursday night to review the redistricting plan and vote on whether or not to approve legal advertising for a public hearing regarding the plan. Even if council passes the plan, however, it cannot become law at the moment.
"There's a freeze (on redistricting) until the congressional reapportionment has been settled," said Linda Cummins, director of Chester County Voter Services.
Cummins said the state department has not yet lifted a moratorium on redistricting plans ordered when the U.S. Congressional reapportionment plans were challenged. The plans changed the U.S. House Districts in the state. The total number of seats shrank from 21 to 19 after the 2000 census determined Pennsylvania grew more slowly than other states. Redistricting at both the state and municipal level is supposed to occur every ten years with new census results.
Borough council established a committee in 2002 to address the redistricting plans. The process of drawing new lines was expedited through the use of the Geographic Information System (GIS) offered through Chester County. The computerized system puts mapping and census data just a mouse click away, and helped the borough to create new wards with almost no variation in population.
"We're even beneath the ratios with this map," said Councilman Anthony DiGirolomo (D-Middle). "We're allowed a two-percent variance. We were much lower."
Councilman Ken Buckwalter (R-West) said the new redistricting map "looked pretty clean" in terms of the way it divided boundaries. Buckwalter's concern, however, was whether the borough would be able to pass a plan in time for the May primary.
"If somebody says we can do it, then yeah, let's do it," he said Wednesday. "But let's say it were to be lifted tomorrow. I don't know if that's enough time before the primary."
Act 101-1989 states that by March 1, or at least 60 days before an election, the "county shall have precinct division completed and in place for upcoming election."
HARRISBURG, Pa. - A revised Republican plan for redrawing the boundaries of the state's 19 congressional districts is constitutional, a three-judge federal panel ruled Friday.
The plan, which would shift about 40,000 of Pennsylvania's 12.3 million residents into new voting districts, does not violate the "one-person, one-vote" principle and can be used, the panel ruled in a unanimous decision. The "one-person, one-vote" principle holds that voting districts should be as close to even in population as possible.
"We're pleased," said Stephen C. MacNett, lead counsel to Senate Republicans, who along with their House counterparts defended the plan in court. "We always believed that ... it met in every regard the constitutional requirements. ... We're pleased that the end is in sight in the long round of litigation."
Democrats and Republicans had battled extensively last year over two plans for the redrawing of the state's congressional district boundaries.
An earlier plan was declared unconstitutional because the court held that its 19-person population deviation among the districts was too large. The court cited case law holding that states should make congressional districts as uniform in size as possible.
However, that plan was allowed to stand for the May and November elections while the court considered the constitutionality of an alternate plan drawn up by the Republican-controlled legislature.
The new plan deviated by no more than one person until the Armstrong County Board of Elections revised two voting districts and created a 97-person deviation. Republicans in the legislature then passed two laws that undid the board's revisions, keeping the Armstrong County board from changing its boundaries.
The court found that the plan, coupled with the new laws, represented a "good faith effort to achieve precise mathematical equality in congressional district-to-district population."
A lawyer for the Democrats said they would probably try to appeal the case to the U.S. Supreme Court.
"The appeal will probably focus on the political gerrymandering aspects of the case and not the one-person, one-vote," said lawyer Robert Hoffman. "The court here ruled that a political gerrymandering claim could be raised only in the narrowest of circumstances. We may ask the Supreme Court to rule on whether that's right or wrong."
The 11-page decision was issued by U.S. Circuit Judge Richard L. Nygaard and District Judges William H. Yohn Jr. and Sylvia H. Rambo.
Pennsylvania was forced to reduce the number of its congressional districts from 21 to 19 last year in response to 2000 census figures that showed the state's population growth lagged behind that of other states.
HARRISBURG, Pa. (AP)--A Republican plan for redrawing the boundaries of the state's 19 congressional districts is constitutional, a three-judge federal panel ruled Friday.
The plan, which would shift about 40,000 of Pennsylvania's 12.3 million residents into new voting districts, does not violate the ``one-person, one-vote'' rule, the panel said. The rule says voting districts should be as equal in population as possible.
``We're pleased,'' said Stephen MacNett, who as lead counsel to Senate Republicans helped defend the plan in court. ``We always believed that ... it met in every regard the constitutional requirements.''
Democrats and Republicans battled last year over two plans for redrawing the state's congressional boundaries. The first was declared unconstitutional because the court held that its 19-person population deviation among the districts was too large.
The revised plan deviated by no more than one person and represented, the court said, ``a good faith effort to achieve precise mathematical equality.''
Robert Hoffman, a lawyer for the Democrats, said they would probably try to appeal to the Supreme Court, focusing on alleged political gerrymandering.
Pennsylvania was forced to reduce congressional districts from 21 to 19 last year after the 2000 census showed the state's population growth lagged behind other states.
In the congressional redistricting process last winter, the Republicans who run Harrisburg went for the jugular.
They could have played it safe. With Pennsylvania slated to lose two of its 21 seats in the U.S. House of Representatives, they could have eliminated two Democratic districts and left it at that. Take a delegation that had been 11-10 Republican and make it 11-8.
But state GOP leaders thought they could do better. Egged on by the White House, they pushed through a plan designed to produce 13 Republican seats, thereby helping the national party retain its narrow margin of control in the House of Representatives.
The Democrats - who probably would have done the same for their side if they'd controlled state government - complained of being robbed and took the matter to court. In the end, though, the Republicans got what they wanted.
So now the question arises: How's it working out? Does the Republicans' strategy look like an effective use of political muscle? Or will they be kicking themselves on Election Night for having overreached?
We'll know the final answers in three weeks. At this point, things look reasonably good from a Republican standpoint. Good, but not great.
The party seems certain of winning at least the 11 seats it could have had from the outset. That's pretty much a given. And it retains a shot at 12 or 13.
But there have been some surprises. In redistricting, there almost always are.
How so? Last winter, most of the worries among party leaders concerned western Pennsylvania, where U.S. Sen. Rick Santorum (R., Pa.) wanted to eliminate two Democratic seats and create a new Republican one.
Santorum's plan seemed risky, but he got his way. Since then, events in the west have unfolded exactly as he said they would. Two Democrats are gone, and Republican state Sen. Tim Murphy looks like a winner in the new 18th District.
But unexpected problems have cropped up in the eastern half of the state, where Republican mapmakers thought they knew what they were doing. Two seemingly safe districts have turned out to be competitive; President Bush is expected to visit both as part of his final campaign push.
One is the 17th, where two long-time incumbents, Republican George Gekas and Democrat Tim Holden, were tossed together.
The district, which extends from Harrisburg up through Pottsville, was drawn to favor Gekas, who's never before faced a serious challenge. It contains more of his old turf than Holden's; it voted overwhelmingly for Bush in 2000. But polls show Holden, a self-described "conservative Democrat," with a modest lead.
The other battle is in the newly-created Sixth District, where the candidates are Republican state Sen. James Gerlach and Democrat Dan Wofford.
Drawn with Gerlach in mind, the Sixth represents gerrymandering at its most blatant. The district extends from City Avenue in Bala Cynwyd through Chester County all the way out to Reading and Kutztown. It's suburban, exurban, rural and Pennsylvania Dutch all in one, an elongated patchwork of communities with little in common. Wofford, who's mounted a reasonably strong campaign, is fond of likening the district's shape to that of a pterodactyl.
But the area isn't as Republican as it must have looked last winter; Gore actually outpolled Bush there two years ago, and Democratic gubernatorial candidate Ed Rendell is running well there now. Even so, it's home to lots of Republicans, and party strategists think that will work to Gerlach's benefit.
So as of now, with 20 days to go, the verdict on the Republicans' redistricting strategy is still to be rendered.
In the end, the GOP may not get all it wanted out of Pennsylvania. Should that happen, expect to hear some crowing from the Democrats. But no matter what, the Republicans don't figure to do any worse than if they'd played it safe.
State lawmakers on Wednesday passed a revised congressional redistricting map for Pennsylvania, while Republican legislative leaders asked the U.S. Supreme Court to block a federal ruling that overturned the original plan.
A three-judge panel ruled last week that the GOP-drawn map was unconstitutional because new districts varied in population - although by only up to 19 people. The court said that was too wide a deviation since a plan with little or no population difference among districts was possible.
The revised plan, aimed at satisfying the judges, passed 29-21 in the Senate and 121-72 in the House. It now goes to Gov. Mark S. Schweiker.
In their petition to the Supreme Court, the GOP said the three-judge panel's ruling ``has thrown the election process in Pennsylvania into chaos.'' The Republicans argue that unless a stay is granted, the state's May 21 primary election will have to be postponed.
In a odd reversal, a three-judge federal panel ruled last week that the Pennsylvania Congressional map drawn by the Republican-controlled legislature will be in place for the 2002 election and that the May 21 primary will not be moved.
Two weeks ago the same panel ruled by a 2-1 margin that the map allowed for too large a population deviation between the largest district in the state and the smallest. It threw the map back to the state legislature, which quickly tweaked the map to adjust the population deviation and approved a slightly-amended version.
In their latest ruling, the judges said that while the map remained unconstitutional in their view, it made little sense to reopen the filing period and move the primary date back in order to implement a newly approved map that would have little practical effect on the Congressional races in November.
The court will examine the newly approved map May 8 to see whether it is acceptable for the 2004 elections.
The map that will be in effect for this year's elections reduces the Pennsylvania delegation from 21 to 19 and forces three sets of incumbents to run against one another.
Rep. Bill Coyne (D) announced earlier in the year that he will retire rather than face a primary race against Rep. Mike Doyle (D), as did Rep. Bob Borski (D), who was drawn into the same district as Rep. Joe Hoeffel(D).
Rep. Tim Holden (D) is running an aggressive race against Rep. George Gekas (R) in the redrawn 17th district, which tilts Republican.
In another Member-versus-Member race, Reps. Frank Mascara (D) and John Murtha (D) will square off in the new 12th district. Mascara was drawn into the 18th district but decided his chances of re-election were stronger in the 12th.
The 18th district that Mascara vacated is one of two open seats created as a result of redistricting where Republicans believe they have the upper hand. State Sen.Tim Murphy is the consensus GOP candidate. Democrats have recruited Washington County Sheriff Larry Maggi for the race.
In the new 6th district, state Sen. Jim Gerlach (R) is the frontrunner even though Democrats scored something of a coup by getting Dan Wofford, son of former Sen. Harris Wofford (D), into the contest.
Pennsylvania will postpone its May 21 primary election unless the federal courts stay a ruling that invalidated the state's congressional redistricting plan, according to Republican officials.
Erik Arneson, chief of staff to Senate Majority Leader David "Chip" Brightbill (R., Lebanon), said GOP officials would exhaust all possible appeals, including one filed yesterday to the U.S. Supreme Court, before asking the Republican-controlled General Assembly to reschedule the election.
A three-judge U.S. District Court panel ruled 2-1 on Monday to overturn a plan that it said strayed too far from the goal of having equal populations in each of the state's 19 congressional districts.
The GOP plan was expected to give that party an edge of at least 13-6 in Pennsylvania's congressional delegation. The delegation now has 11 Republicans and 10 Democrats, but two seats were lost because of the state's slow population growth.
GOP leaders said they are close to agreeing on a new political map that would meet the court order for minimal population differences.
"It is the same basic plan, just with the modifications that will be needed to comply with the court's order," said Steve Drachler, a spokesman for House Majority Leader John M. Perzel (R., Phila.). "The district boundaries remain essentially the same.
Still, even if that plan is passed by the legislature, the primary likely would have to be delayed - without a stay.
"If we do not get the stay, it is almost inevitable there will be a delay because we have to reopen the petition process, so anyone who takes a look at the new districts and wants to run for Congress can do so," Arneson said.
He said failing to do so would open the state to lawsuits from potential candidates.
In its decision, the court found that Republicans, in putting together a plan with congressional districts that varied by no more than 10 people from the average congressional district of 646,371 people, had failed to justify a deviation of 19 people.
The court, which gave the state legislature three weeks to come up with an alternative plan, also found that the Republican map split too many voting precincts between different congressional districts and pitted incumbents against each other more than necessary.
State lawmakers say they will appeal a federal court's decision to strike down a plan adopted by the state Legislature for remapping the state into 19 congressional districts.
Republicans, who control the state Legislature and engineered the plan, on Tuesday filed for a stay in the case, asking the federal judges to delay implementation of their order, said Stephen Drachler, spokesman for House Majority Leader John Perzel, R-Philadelphia. With the primary election only six weeks away, lawmakers fear redrawing the districts now could create various problems for voters, candidates and election officials.
Lawmakers are also considering appealing to the U.S. Supreme Court.
Just in case the appeals don't work, GOP staffers have already begun redrawing the map to conform with the court's requirements. This will require only "very tiny, tiny changes," said Michael Long, a Senate staffer who helped draw the original map. As a result, congressional districts won't change significantly.
"Remember that 19-person deviation is a plus/minus," Long said. "No district deviates by more than 10. So you can make changes with almost no discernable change to the district."
But the changes could create problems for election officials, Long added.
"It's not a simple task, which is what we tried to express to the court," he said. "When you get down to a miniscule margin error of 19, there aren't precincts that small. So, you get the point where you have to split voter precincts and that creates a whole host of problems for county election boards."
Fifty-nine municipalities and six precincts are already split in the congressional map as it's currently drawn. After the court-required changes are made to the map, there will be three times as many split precincts and municipalities, Long estimated.
The revised congressional map may be unveiled as early as today, Drachler said.
The original map would have transformed a congressional delegation that now favors Republicans 11 to 10 to one that would give the GOP an edge of at least 13 to six, political analysts said. Because of its sluggish population growth, Pennsylvania lost two House seats ˇdropping to 19 ˇin the nationwide reapportionment that followed the 2000 census.
Any new map must be approved by the state Legislature. Republican leaders believe they'll be able to get the votes necessary to pass a revised plan.
But Democratic leaders hope they'll be able to make some changes to the plan. When the original plan passed, not all Republicans supported it. As a result, GOP leaders needed to make some changes in order to gain support from some House Democrats.
"No reapportionment map in modern times that I can recollect passed with only one party's support ... This is a sterling opportunity for us to offer a vastly improved rendition in this mapping exercise," said House Minority Leader H. William DeWeese, D-Fayette/Greene/Washington.
But to do that, the Democrats will need to be unified.
"The last time we passed a plan, part of the problem was some of the congressional Democratic members were for the Republican plan because it was helpful to their individual districts and they were asking our members to vote for plan," said House Minority Whip Michael Veon, D-Beaver. "It's very hard to have the Pennsylvania House Democrats unified and voting the same way if the Pennsylvania Congressional Democrats are supporting different plans."
Harrisburg Republicans yesterday were still groping for legislative and legal strategies after being blind-sided by a federal court decision that struck down Pennsylvania's congressional redistricting plan.
GOP leaders planned to appeal the ruling to the U.S. Supreme Court, but that was one of the few certainties to emerge in a Capitol long on questions but short on answers.
The most controversial option under study was to postpone the primary election until September, a move that would have a dramatic effect on elections up and down the ballot, starting with the race for governor.
Democrats immediately characterized that plan as a ploy to steal an advantage for the GOP's gubernatorial candidate, Attorney General Mike Fisher.
Stephen Drachler, spokesman for House Majority Leader John Perzel, R-Phila., said lawmakers tentatively planned a two-track strategy, filing an appeal while preparing legislation to fine-tune the congressional map passed earlier this year over the howls of Democrats.
A special three-judge federal court panel, made up of two district court judges and a circuit court judge and sitting in the Middle District of Pennsylvania, discarded the plan Monday, ruling that it violated the constitutional principle of one-man, one-vote.
While the plan's largest and smallest districts vary in population by a mere 19 residents, the court ruled that even such small differences were not permissible. The court gave the Legislature three weeks to craft a new plan. If the lawmakers cannot meet that deadline, the court could come up with its own map.
To avoid that, the Republicans were considering asking the U.S. Supreme Court to hear their appeal on an expedited basis.
Republican leaders said they could rehabilitate the rejected map with minor tweaking, but even small changes could force a delay in the primary, now scheduled for May 21. One consideration was whether an altered congressional map would necessitate a new schedule for nominating petitions for candidates in what would amount to brand new districts, even if they are changed only slightly.
The Legislature could, in theory, delay the congressional primaries while allowing the races for governor, lieutenant governor and the Legislature to go forward as scheduled. That, however, would entail significant costs. Mark Wolosik, who heads Allegheny County's election division, said it would cost the county between $750,000 and $1 million to stage a separate primary.
(At the same time, the redistricting plan for the Allegheny Council -- this one drawn by Democrats -- is also hung up in court on grounds that it violated rules for how districts should be drawn.)
Drachler said that the influential Perzel opposed dividing the primaries. If a delay is needed, he said, it should affect the entire election.
Such delays are not unprecedented.
North Carolina's state Supreme Court has postponed the state's primary, previously scheduled for May, because of redistricting issues. In New Jersey, the primaries for the state Legislature have been delayed for similar reasons.
The prospect of a delay until September, the date suggested by Perzel and other Republicans, would scramble the plans and budgets of campaigns from one end of the state to the other. Candidates have built their plans and spending decisions around the May 21 date.
"Politically speaking, the only reasons to wait until September would be to prop up Mike Fisher," said Steve Kniley, spokesman for the Senate Democratic caucus. "He's a weak candidate and that would give him an advantage over whoever the Democratic candidate is. Fisher would be able to raise money all summer, while they campaign against one another.''
The increasingly harsh campaign waged by the Democratic contenders, Auditor General Bob Casey Jr., and former Philadelphia Mayor Ed Rendell, has already delighted strategists for Fisher. The possibility of them beating on one another on into the fall would positively delight them.
Kent Gates, campaign manager for the Republican, said he had no comment on the Legislature's deliberations. Nor did Troy Colbert, Casey's press secretary.
"We're all set to win this primary on May 21,'' said Dan Fee, spokesman for the Rendell campaign. "If the ground rules change, we'll change our plans accordingly.''
The surprising ruling by the federal court has national as well as statewide implications. Republicans control the U.S. Congress by just six votes.
National GOP strategists had counted on the rejected political map to cut the number of Democrats elected from Pennsylvania from 10 currently to as few as five or six in the next Congress.
A federal court ruled Monday that the Republican-backed plan adopted by the state Legislature for remapping the state into 19 congressional districts is unconstitutional.
In a 2-1 vote, the three-judge U.S. District Court panel ruled that the redistricting plan's difference of 19 persons between the populations of the largest and the smallest of the new congressional districts violated the "one man, one vote" principle.
However, in a dissent, U.S. District Judge William H. Yohn Jr. said the 19-person deviation was justified by a legitimate objective of avoiding splitting voter precincts among districts.
The court stopped short of revising the state's redistricting plan itself, instead setting a three-week deadline for the Legislature to submit another plan. That deadline is April 29, less than a month before the May 21 primary.
The plan had been expected to give Republicans a 14-5 edge in Pennsylvania's congressional delegation, compared to the 11-10 majority the party now holds.
Republicans called the distinction made by the court "unrealistically fine" in a state with a population of 12.3 million people and said they would probably appeal the ruling or seek a stay from the U.S. Supreme Court.
The issue of deviation was the sole remaining challenge left for Democrats, who filed suit against the plan.
The judges said the population deviations could have been avoided. The federal court also noted that the person who created the map testified that the Republican leadership advised him to stop manipulating the numbers of people in each district once he reached a difference of 19.
Staff Writers Robert Armengol and M. Bradford Grabowski and The Associated Press contributed to this article. Melissa Milewski can be contacted via e-mail at [email protected]
Two federal judges threw out the state's congressional redistricting plan yesterday and gave a stunned state Legislature three weeks to do it over.
Senate Majority Leader David J. Brightbill, R-Lebanon, a key author of the plan, said the GOP-dominated legislative leadership would ask the U.S. Supreme Court to overturn or suspend the ruling.
"No one knew this was coming," said House Minority Whip Mike Veon, D-Beaver, echoing Brightbill. "And nobody's sure what will happen next. We'll try to make the plan fairer. The Republicans will try to make no or little change. But this does give us a small chance to change a bad plan."
As the state challenges the court order, Brightbill said House and Senate GOP leaders will ask their staffs to ready a plan that complies with the federal order, in case their appeals fail.
U.S. District Judge Sylvia Rambo and U.S. Circuit Judge Richard Nygaard outvoted U.S. District Judge William Yohn to overturn the state's map for its 19 congressional districts.
Rambo and Nygaard wrote that federal law requires that congressional districts be exactly equal in population, except in limited cases. They ruled the plan could deviate from the average by more than 10 people if it did not split voting divisions or unnecessarily pit incumbent congressmen against each other.
The law created districts that are within 10 residents of the state average of 646,898.
Pennsylvania's 21 congressional districts shrink to 19 in early 2003 because of slow population growth. Rambo and Nygaard said that means that to write a plan that deviates from the average population, only four incumbents should be combined into two districts.
But the Pennsylvania plan, considered the most GOP-favoring in the nation, combined six Democratic incumbents into three districts, while creating two new districts.
It also puts a seventh Democratic incumbent, Rep. Tim Holden, D-Schuylkill, into a GOP-favoring district with 10-term incumbent Rep. George W. Gekas, R-Harrisburg. Gekas and Holden have been campaigning for weeks.
Political analysts said the Pennsylvania plan turns a delegation where Republicans hold a 10-9 edge into at least a 13-6 GOP advantage by 2003.
"It's clear ... that these two judges just don't like our plan," Brightbill said. He later added, "We are legally allowed to gerrymander for political purposes."
House Minority Leader H. William DeWeese, D-Greene, disagreed.
"This re-shuffles the deck of state politics and reverses the monstrous deformity of a redistricting plan that the Republicans vomited forth. Their plan was not intended to be fair but to retire Democratic congressmen."
DeWeese noted that since Republicans began to detail their plan, two Democratic congressmen announced they would not seek re-election. Two others, Holden and Rep. Frank Mascara, D-Washington, are considered underdogs in their new districts.
"We should use this new opportunity to write a new, fair plan," DeWeese said, "or risk the fate that strangers to us, federal court judges, will write the new congressional district plan for Pennsylvania."
Senate General Counsel Stephen C. MacNett said federal courts were unlikely to impose a plan on the state.
Brightbill said that trying to reopen the congressional redistricting law, even for technical changes involving shifting less than 10 residents, "could open up Pandora's Box.
"A lot of people have ideas, could want to make big changes," Brightbill said. Ultimately, those changes could lead to changing the date of the May 21 primary election or changing the congressional districts markedly, he said.
Peter L. DeCoursey: 255-8115 or [email protected]
Down to One
Citing no evidence of discrimination, a federal three-judge panel has dismissed all but one Democratic challenge to a new, GOP-drawn House map in Pennsylvania.
In one of the biggest redistricting wins for their national counterparts, Republicans in Harrisburg approved a House map last year that eliminates two of Pennsylvania's current 21 districts and creates the potential for GOP candidates to win 14 new seats. There are currently 11 Republicans and 10 Democrats in the Keystone State's delegation.
State Democrats have challenged the plan. The federal judges left standing one charge based on the "one person-one vote" principle dictating that each district must have the same number of people. A March 11 hearing is scheduled.
When Rep. Frank Mascara (Pa.) looks for Democratic backers in his primary race against Rep. John Murtha, one party leader he should call is state Senate Minority Leader Robert Mellow (D), who last week said he was "very disturbed" by Murtha's self-interested approach to a GOP-led remap that could devastate Keystone State Democrats.
Last week Mascara began circulating nominating papers that would permit him to run in the new 12th district, which includes most of Murtha's current district. Murtha chose not to run in the new 18th, where he lives, and will instead run in the 12th, pitting the pair of Democrats against each other in the May 21 primary.
"I do not think Jack Murtha spoke in the best interest of the Pennsylvania Democrats. I think he spoke in the best interests of Jack Murtha," Mellow said.
Last week Mascara announced, as expected, that he would challenge Murtha in a Democratic primary rather than run in a new, GOP-leaning district against state Sen. Timothy Murphy (R).
A Commonwealth Court judge struck a blow to Democratic hopes of overturning the GOP-authored remap plan in Pennsylvania late last week by recommending that the state Supreme Court dismiss a lawsuit pushed by Democratic members of the state delegation.
In a 28-page ruling, the judge said the Democratic plaintiffs failed to prove that so-called "political gerrymandering" is a violation of the state constitution.
The GOP plan would likely transform the current 11 Republican-10 Democrat delegation into a 13 Republican-6 Democrat split.
It places three sets of incumbents in treacherous political waters. Reps. Joseph Hoeffel (D) and Bob Borski(D) would be forced to run against each other in a district that takes in parts of Philadelphia and its surrounding suburbs.
Rep. Tim Holden (D) was placed in a Republican-leaning district with Rep. George Gekas (R), but surprised some observers by announcing late last week that he would stay put and challenge the Republican this year.
Rep. Frank Mascara (D) currently lives in the new 18th district where state Sen. Tim Murphy (R) has already announced his candidacy. In recent weeks, however, Mascara has hinted strongly that he is more likely to run against Rep. John Murtha (D) in the new 12th district.
There is no definite timetable for when the state Supreme Court will rule on the Democratic challenge, although both sides expect a decision today. A federal court challenge brought by Democrats is also pending and the suit is set to be heard March 11.
The filing period for Congressional candidates begins tomorrow and is
slated to end March 12.